The Champion

December 2013 , Page 14

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The 16 Things Every Defense Attorney Should Know About Fair Cross-Section Challenges

By Nina W. Chernoff and Joseph B. Kadane

Every criminal defendant in federal or state court who will be tried by a jury has the right to have that jury selected from a fair cross-section of the community. Every criminal defense attorney should be equipped to enforce that cross-section right when it is in the client’s best interest to do so. Part I of this article explains the 16 things a defense attorney should know about fair cross-section challenges, and Part II provides a detailed analysis of two successful fair cross-section claims.1

A defendant’s right to a jury selected from a fair cross-section of the community is rooted in both the Constitution and statutory authority:

• First, the Sixth Amendment provides all criminal defendants, in federal or state court, with the right to an “impartial jury.”2 The Supreme Court has held that “an essential component” of that right is “the selection of a petit jury from a representative cross section of the community.”3 After all, the purpose of the jury is to ensure th

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